The Great Potato War

When my KCSE results arrived, and the shock of having passed had receded, my parents and I arrived at a decision that would have profound consequences on my future. Because of my less-than-reliable views on hard work, it was decided that the deep end of adulthood was what I needed and I was, by mutual agreement, despatched to the Indian subcontinent to read law. That is where I encountered the US multinationals that got me hooked on junk: Macdonalds and Kentucky Fried Chicken (KFC). The Maharajah Mac, dear brothers and sisters, is the heroin of burgers. But this is not the story of my Maharajah Mac pining.

This past week, Kenyans on Twitter, the redoubtable #KOT, waged a war to end all wars against the Kenyan franchisee of KFC over the refusal by the franchisee to source its potatoes from Kenya on the laughable grounds that Kenyans couldn't meet the KFC standard. I am not here to relitigate the finer details of the war, save for one of the issues that cropped up: industrial policy.

I have been privileged to witness the making, unmaking and remaking of various policies. It is far from a pretty sight. Policy-making requires the kind of patient administrative work that the current regime lacks in its senior-most ranks. There are senior government officials who labour mightily under the illusion that all they need to do is snap their fingers, and shillings rain down like manna from heaven - and they consider this the epitome of policy-making. It is how someone can rouse themselves from the comfort of their beds and declare that Kenyans will not access public services unless they are fully vaccinated. And it is this kind of policy-making ignorance that invites the demands that were made last week to "ban the import of frozen potatoes from Egypt".

Policy, generally, is not overly complicated. Industrial policy, as with agricultural policy, on the other hand, can lead one to tear their hair out. There are so many moving parts that coherence is often sacrificed at the altar of political expediency, corruption and bureaucratic laziness. Anyone who has watched as Kenya's sugar industry cratered and billions were wasted on "sugar reforms" will surely admit this to be true. The potato industry seems to be a victim of the same malaise that afflicts sugar, maize, bean and coffee. The current nabobs of the agriculture sector, led by the indefatigable minister, are no longer interested in a coherent agricultural policy and their counterparts in the industrialisation ministry seem powerless to rein in bad policy ideas.

Nothing epitomises the policy incoherence more than the utter failure to scale up market facilities at the local level. If you have had the privilege of passing through Wakulima Market at four in the morning, then you must surely wonder how lorry loads of tomatoes and other agricultural produce end up dumped outside the market because the market does not have bulk cold storage facilities, sixty years after it was established. The same is true nationwide., Indeed, even in the case of NCPB's silos, modernisation seems to have been abandoned and the national silo infrastructure is no longer fit for use.

The continued lack of a coherent and comprehensive policy, one that is founded on the objectives of Kenya Vision 2030, is one more indictment of the current regime that has obsessively built infrastructure whose short-term and long-term economic efficacy is doubtful at best. The billions squandered on floating bridges and last-mile connectivity could have established a robust agriculture infrastructure programme that would have considerably reduced post-harvest agricultural losses and facilitated the development of a vibrant domestic commodities market. The Great Potato War is merely the latest proof of the utter failure of the agriculture sector nawabs.

NMS Must Go

The Environmental Management and Co-ordination Act (No. 8 of 1999) is one of the most mind-numbingly boring pieces of legislation to ever manage from the National Assembly of Kenya. It is written in such a stodgy and turgid style that only a masochist would read it for fun. It's ennui-inducing text notwithstanding, it is a law of the Republic and must be obeyed whenever someone sets out to do a project in Kenya. It binds everyone, regardless of their station in life. Barring the nitpicking of members of my tribe, where it says "shall", it commands one to do or refrain from doing that act.

It states, at section 58(1):

Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

The Second Schedule classifies projects into low-risk, medium-risk and high-risk.  In my opinion, what is being undertaken in Uhuru Park is a low-risk project (small scale rehabilitation, maintenance and modernization of projects), for which a project report should have been submitted to NEMA and, should NEMA have directed, an EIA should have been undertaken. In flagrant disregard for section 58, none of this was done and it has taken a petition by the Communist Party of Kenya to put a stop to the goings on in Nairobi's largest urban green space.

We have been fed tonnes of propaganda about how military officers are so by-the-book and honest that they will right the developmental ship of state from its dangerously parleys state. I have expressed my scepticism about the soldiers donning mufti and playing at civilian administration. I am not persuaded that soldiers - whose business should be to high wars - are well-suited to the mess coalition-building of varied interests that is necessary to the running of a city or the management of its affairs. Even senior military officers live under the rubric that all orders of their commanders-in-chief must be obeyed, regardless of the constitutional fig leaf of "lawful orders". The general in charge of the Uhuru Park project has not demonstrated a sufficient capability in civilian coalition-building to believe that he is capable of complying with anything other than the direct orders of his commanding officer.

We know enough about the disfunction in NEMA and other regulatory bodies to know that the cost of undertaking any project in Kenya is orders of magnitude higher than it needs to be. The solution, however, is not to undermine the laws of the Republic no matter how noble a project is claimed to be. The Uhuru Park fiasco is proof that military generals lack the creativity needed to undertake any major project in the city. Messrs Sonko and Kidero were terrible governors but they understood the need to consult widely and involve all affected parties when undertaking projects, and when the projects foundered for whatever reason, they adjusted, adapted or pulled out altogether, which is the essential component of democratic development.

The poor man charged with improving physical planning services in Nairobi City is incapable of consulting effectively; has no clue about the political and social impacts of his my-way-or-the-highway approach to leadership; believes that the ends justify unlawful means; and will not admit that he is in waters he can't navigate or that his appointing authority was wrong to appoint him in the first place. The Environment and Land Court may yet reverse its injunction against the Uhuru Park project and if it did, that would be entirely in keeping with the doctrine of the rule of law. The reason why the injunction exists in the first place is that the project proponents in Uhuru Park shat on the rule of law. Whether or not the injunction is lifted, the Nairobi Metropolitan Service cannot continue to operate. It should be disbanded and its officers barred from ever serving in the public service again.

What is left unsaid says it all

We teach our children that violence is not the answer. We, sometimes, reinforce the lesson, with violence. Therein lies irony, but that is not the reason for this post. If there's one lesson that we have taken from years of childhood development studies it is that violence forms a poor foundation for the education and discipline of children. But in situations where time and other resources are scarce, the instinct to chart familiar, violent, paths overwhelms the instinct to spend more time and resources in building new systems for the education and discipline of our children. It is a schizophrenic hypocrisy, of sorts.

I have watched with amazement as the Cabinet Secretary for Education and his internal security counterpart, together with other senior government officials, muse publicly that it is time to reintroduce corporal punishment in schools as one of the solutions for the waves of school unrest and associated cases of arson. Far better thinkers of childhood development can tell you why violent coercive force is no longer the preferred method for educating or disciplining children. I intend to show you why it is wrong for governmental officials to casually and recklessly recommend the usurpation of constitutional prohibitions.

In Kenya, Cabinet Secretaries and Principal Secretaries swear an oath to obey, respect and uphold the Constitution of Kenya and all other laws of the Republic. The Constitution imposes an obligation on all Kenyans to protect children from all forms of violence. In my opinion, this includes protection of children from corporal punishment, which is a form of violence. The Basic Education Act, which is a law of the Republic, states that one of the principles of the provision of basic education is the elimination of  corporal punishment.

The oaths that the Cabinet Secretaries and Principal Secretaries swore means that they cannot casually propose the reintroduction of corporal punishment without first amending the Constitution and repealing the provisions that protect children from any form of violence. Furthermore, they cannot declare that they "do not believe in children's rights", because it would amount to saying that they do not believe in the Bill of Rights, which would bring into question their fitness to continue serving in Government.

I have watched with trepidation as senior members of the Government have swatted away their constitutional obligations whenever it inconvenienced them. A senior member of the police service defied court orders and was convicted of contempt and ordered to serve a term of imprisonment of four years. He has also disobeyed the latest court order. Several Cabinet Secretaries have also been convicted of contempt of court; they have all defied the sanctions imposed on them by the courts. No less than the Chief Justice of kenya has watched as some of his orders are defied by Government officials.

Meanwhile, the police service is wielded as a sledgehammer against the hoi polloi should they deign to set one toe over the line. Quite often, police action in the enforcement of the law ends tragically; men, women, children and infants have died at the hands of police in the enforcement of the law. But when it comes to senior members of the Government, regardless of the scale of their alleged offences, they are treated with kid gloves even as they thumb their noses at the rule of law. This is not a satisfactory way to build a culture of constitutionalism in Kenya. Indeed, I would go so far as to say that the true threat to the constitutional order is the reckless disregard for the rule of law by senior members of the Government.

In my opinion, any governmental official who declares that children do not enjoy any constitutional protections is not fit to hold public office; any government official who defies the orders of the courts, is not fit to hold public office; any governmental official who undermines the rule of law in any way must be removed from office and barred from public service forever. But this is half the story, isn't it? The other half is left unsaid because that is what we do and who we are.

Change or die

A video was published on social media showing the exact moment 25 people died. The bus they were traveling in attempted to cross a swollen river at an unsafe drift road crossing. It is reported that the driver of the ill-fated bus hesitated for a long time before being urged forward by his passengers who were on their way to a wedding. It is also reported that some of the passengers argued that God would keep them safe. This terrible tragedy was avoidable.

In the same week, a speeding driver who is suspected to have been driving while drank hit and killed two motorcycle riders. It is reported that the dangerous driver is the son of a senior policeman. It is also reported that police procedures at the scene of a road traffic accident in which fatalities are reported were not followed. The dangerous driver was allowed to leave the scene of the accident without recording a statement. The vehicle that he was driving was not towed to the nearest police station. The policemen at the scene of the accident did not alert anyone about the accident. This tragedy could have been avoided. The events that followed could have been prevented.

There are many things that contribute to the dangerousness of driving on Kenyan roads. Some are highlighted in these tragedies: poor road design; poor mitigation of risks; poor driver training; and abuse of office by privileged road users. Take the manner in which the alleged son of the senior policeman was treated. He is not the first one to get away with traffic offences because of who he is or who he is connected to. It has become an ingrained part of our national DNA that senior government officers (and they friends and families) are not to be strictly bound by the law, even when their actions cause death and serious injury.

We have a word for this: impunity. It pervades every aspect of our lives. It is excused. It is encouraged. And as we have seen, it cause death, injury and destruction on a colossal scale. The single most important contributor to the contempt for the law that infects Kenyans' lives is the impunity of governmental officials, their families and friends. Why should the hoi polloi follow the law when the men and women who have sworn to uphold the law flout it with impunity and protect their friends and family when they flout it? Why should the hoi polloi obey the law when the forces of law and order conspire to defeat the ends of justice when the high and mighty commit offences? If our governmental leaders will not be held to account, if they will conspire with other governmental officials to undermine the law, and thereby defeat the ends of justice while causing death and injury, there is no reasonable cause to believe that the people they govern or lead will do the same. Widespread hypocrisy is simply not a good way to govern. And when it comes to road traffic accidents, fatalities and injuries, this kind of hypocrisy is deadly.

The Kitui tragedy was avoidable and preventable. Avoidable because the driver of the ill-fated bus should have turned back and found an alternative route to his destination and if such a route was not to be found, returned to where the journey began. No amount of exhortations from his passengers should have override his initial instincts to avoid the crossing.

It was preventable if only the crossing had a proper bridge or, if such a bridge was not to be had, a barrier across the crossing during the period the crossing was dangerous to use. One of the episodes on the Australian reality series Outback Truckers shows the lengths local authorise in the Australian bush will go to prevent tragedies on the roads. In this episode, the long-haul trucker comes to a similar drift crossing that is swollen; the river has broken its banks and is swirling over the drift crossing. The local authorities have posted a barrier across it and a notice barring its use. Our trucker is the only one on the road. He chooses safety and finds an alternative route. Our bus driver should have done the same. The Kitui County Government should have posted warnings not to use the crossing.

The Kitui county government's apathy, as that of the roads' authority and National Transport and Safety Authority, are responsible fr the deaths. The bus driver and his passengers are not the only cause of the tragedy. Because no one will truly be held to account for this kind of apathy, it is almost certain that the Kitui county government, the roads' authority and NTSA will not change how they govern the roads; the drift road crossing will remain dangerous when the river waters swell; and eventually, tragedy will strike again. The impunity we have permitted to metastasise when it comes to law enforcement on the roads has infected the design, construction and use of roads. If we don't change, death and injury will continue to stalk us wherever we go.

Untrained, inexperienced, without a plan

It almost always comes as a surprise when a Kenyan will robustly defend under-performers in the public service with a roster of excuses that a child of five will see for what it is: arrant nonsense. My latest encounter is with a man (I will assume it is a man because men will walk through fire for other under-performing men) who can only marvel at the challenges the general in charge of the Nairobi Metropolitan Service has faced as he seeks to bring water services closer to the people.

In response to my observation that the good general is utterly useless due to the image of mikokoteni-borne water vendors plying their trade in the Central Business District, the man could not hold himself back and had to remind me that the general has sunk 300 boreholes in informal settlement. I didn't have the heart to tell him that he had missed the point, especially when we limbered up and declared, "Nairobi cannot be overhauled in two years", completely forgetting that rapid results was what the general promised when he took up this additional duty.

If the general had bothered to ask, he would have been told that water services are not for the unprepared. The redoubtable Martha Karua faced entrenched resistance from cartels and vested interests when she initiated reforms in the water sector. If for nothing else, Ms karma is remembered in Government for the preparations she made for the water reforms, and the skills she demonstrated when she overcame resistance to her form agenda. The general does not have Ms Karua's skills. He may be a hotshot over at the Airforce, but he is woefully out of his depth when it comes tot he delivery of efficient, effective and affordable water services.

It is not unpatriotic to point this out. He is simply not qualified to manage water services. He isn't trained to do so. He has not worked int he water sector. He didn't have a plan to improve water services when he was appointed to his current post. All he had to go on were his prejudices - which are, in fact - the appointing authority's prejudices - when to comes to how residents of Nairobi access water services. It is why the general celebrates - and is celebrated for - the sinking of boreholes in informal settlements as opposed to being celebrated for ensuring water services are provided at the lowest cost possible to the widest number of city residents without having to rely on expensive boreholes or contend with the environmental damage caused to water tables and wetlands.

Further, merely reminding me that Mr Sonko, the recording artist formerly known as Governor Bling Bling, was worse is not proof that the general is better at anything to do with municipal services. It is only proof that Nairobi's residents have been ill-served by its elected and appointed officials, and that there are no shortcuts to good service. Had the general been asked to modernise Kenya's Airforce, no one would have batted an eyelid; he is, after all, general in the airforce, where he has trained professionally for decades to rise to his current rank. Unfortunately, he came to municipal services without training, experience or a plan. Nairobi continues to pay the price for his ineptitude. His temporary duty assignment cannot end soon enough.

Of feral cats and police reforms

What one chooses to remember about the Kenya Police of the 1980s and 1990s is determined by how forgiving ones amnesia is. When I went to boarding school for my secondary school, like many teenage boys of my time, I knew well enough not to be accosted by police in the evening. Whether or not I was innocent, in uniform or dire medical distress (which happened frequently), if they ran into you at any time after 7 p.m., you would rue the day you stepped foot outside your school for anything than a fully chaperoned excursion in the company of a teacher. One of my friends never recovered from the violent assault he suffered at the hands of the police.

It was only years later when John Michuki admitted that the police were a tool for the control and oppression of the politically recalcitrant that it finally dawned on me that the directive to instil "discipline" in all Kenyans came from the top that I started to understand why "reforms" would always fail if the hand holding the political trigger was disinterested in police reforms. Mr Michuki certainly though the Ransley Commission report to be a complete waste of time - and so has every single one of his successors.

When the infant Pendo was killed by policemen, it was only the sustained public outcry that led to their arrest and prosecution, But four years after the trial began, the prosecution is yet to close its case. If it wasn't for the sustained public outcry that ensued, Benson Njiru's and Emmanuel Mutura's unexplained deaths at the hands of police would not have been investigated and their killers would not have been arrested and prosecuted. Four months after the two brothers were killed, no one is sure that the six police charged with their murder will ever be convicted. Five years after Willie Kimani, his client Josphat Mwenda and their driver Joseph Muiruri were abducted, tortured and murdered by policemen, we are only at the case-to-answer stage of the criminal trial, a trial where the police have stonewalled all the way.

From the moment we promulgated the new constitution, we have only paid lip service to police reforms. It is clear that the hands that hold the police's leash are loath to let go; the National Police Service Commission is powerful on paper and toothless in reality. The Independent Policing Oversight Authority is a pale imitation of a civilian oversight agency of policemen. The Internal Affairs Unit is renown for keeping a studious low profile. None of the cosmetic changes to police oversight and police leadership has demonstrably altered the fundamental nature of Kenya's police. The key to the state of affairs can be found in the stubborn unwillingness of the civilian authorities to implement and enforce the required reforms. This stubbornness is reflected in how they deploy policing resources, not for the safety of the people, but for the purpose of intimidating and controlling the people.

Policemen and policewomen are humans, parents, siblings, friends, children, grandchildren and members of the communities they hail from and reside in. As individuals, they are simultaneously victims and perpetrators of great inequality and unspeakable crimes. As an institution, the police forces are weapons of intimidation, fear, human rights abuse and great corruption and crime. It's been eleven years since we promulgated a new constitution, and things have not changed at all. Police continue to murder and solicit bribes with impunity. Isn't it time to admit that tinkering with the mechanics of policing - laws, rules and regulations, standing orders and standard operating procedures - misses the forest for the trees? The police and police institutions are not the problem. The problem is the political and civilian authorities. They are the ones in need of reform. Who will bell this feral cat?

It's time to send a message

Barely a decade has passed since "Ocampo Six", "Ekaterina", "Bensouda", "ICC" and "Waki Envelope" defined the run up to a general election. The tragic events that followed Mr. Samuel Kivuitu's declaration of the winner of the 2007 presidential election continue to define and redefine Kenyans and their relationship to their government. Of the many men and women who were party to the events that defined the aftermath of the election and the outcome of the abortive trial at the International Criminal Court, none cuts as tragic a figure as the former vice chairperson of the Kenya National Commission on Human Rights and first post-2010 senator of Mombasa County.

Those who care to remember will remember the passion he brought to his task investigating the violence that followed Mr. Kivuitu's declaration. Of the members of the Commission, he came across as unusually ardent, so much so that when rumours swirled about how witnesses had been bought and official reports manipulated, his name was linked to the rumours though no proof was ever adduced and the matter was allowed to rest. No one will remember the public investigation of the cause and aftermath of the 2007/2008 Post-Election Violence without remembering his public crusade to bring the perpetrators of the violence, especially the so-called Ocampo Six, to justice, whether here in kenya or at the International Criminal Court at The Hague.

He trod a well-trodden path after his stint on the Commission was over. He joined a political party, the darling of the voters. He was popularly elected to the Senate as his county's first senator. He became a vocal member of the elected classes. Then he had a falling out with his party leader and, in his bid to be re-elected, lost his party's nomination and his deposit in the bargain. Ever since, he has cut an increasingly pitiable figure in his quest to find political redemption and relevance while out in the electoral cold.

In recent months he has found a friend in one of the men he once passionately accused of crimes against humanity, who offers him the hope of an electoral comeback. Together they have walked, as his new benefactor seeks to become Kenya's fifth head of state and government. To those who can remember the firebrand who pursued justice as a Commissioner, his transformation is a true head-scratcher, a reverse Damascene conversion - once one had sight and now they are blind.

Of the many tragedies Kenya has suffered in the period after 2008's peace deal between the 2007 presidential belligerents, none is as heartbreaking as the failure to do justice to those who were murdered, maimed, dispossessed or displaced after the 2007 general election. The heartbreak is made more painful by the number of men and women who have abandoned the pursuit of justice, even refusing to pay lip service to the corse of justice. They are, almost to a person engaged, in the wild pursuit of a place at the high table when the change of guard takes place in August next year. The individual men and women who promised justice and who, for a time at least, pursued justice and who have now turned their coats and joined together with the men they investigated with such vigour before is almost too painful to witness. But we must bear witness and tell our story if only to warn our future selves of the fickleness of human political principles.

Though no one was convicted of crimes connected to the 2007/200 violence, no one was truly acquitted either. Many events conspired to defeat the ends of justice. Truth did not triumph. That fig leaf is unavailable to that man. There are many things that he can rationalise about his behaviour but not how he has seemingly abandoned the principles that guided him when he was a Commissioner and a senator. If it is political redemption and relevance that he seeks after five years in the electoral cold, he deserves neither. He deserves to lose and lose roundly. The voters must send him a clear message: he is no longer welcome in the corridors of power.